Public Prosecution Service v Elliott (William) and McKee (Robert)

JurisdictionNorthern Ireland
JudgeHiggins LJ
Judgment Date2011
Neutral Citation[2011] NICA 61
CourtCourt of Appeal (Northern Ireland)
Date28 September 2011
1
Neutral Citation No. [2011] NICA 61
Ref:
HIG8300
Judgment: approved by the Court for handing down
Delivered:
28/9/2011
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
__________
THE PUBLIC PROSECUTION SERVICE
Appellant;
-and-
WILLIAM ELLIOTT and ROBERT McKEE
Respondents.
________
Before: Higgins LJ, Girvan LJ and Sir John Sheil
_________
Higgins LJ (giving the judgment of the Court)
[1] This is an appeal by way of case stated from a decision of Craigavon
County Court whereby the respondents’ appeals against their conviction for
theft were allowed and the prosecution case against them dismissed.
[2] The prosecution case was that around 9.30 pm on Saturday 6 October
2007, the police received a report of two males in the premises of Aluminium
& Plastic Systems. Constable S McKittrick attended and found the premises
secured and 3 piles of 10 foot long UPVC guttering and 4 piles of 10 foot long
pieces of UPVC facia boards stacked near the perimeter fence. The grass
around the premises had been recently cut and there were grass clippings
lying at that location. The respondents were located in a Ford Transit van
parked nearby. On questioning both said they had been to look at a car
parked nearby within the premises of Lenfestey’s car dealership and that
neither of them had been near the premises of Aluminium and Plastics
Systems (AP&S). A hooded top with grass clippings on it was on the front
seat of the van. The grass around the van was short and damp but there were
no grass cuttings. The rear of the van was empty except for some cord/rope
and a roof rack was fitted to the van. The respondents were arrested and
cautioned. They maintained that they were at Lenfestey’s. McKee was asked
under caution to account for the hooded top found on the front seat, and
replied “I’m accounting for nothing.” The respondents were then conveyed to
Lisburn PSNI Station and the van seized, along with a pair of wire cutters
found in the front footwell and the hooded top. Around 11:55pm Mr B
2
McAlinden of the PSNI Scenes of Crime Department, attended at the scene
and seized 3 polythene packets from the items that had been stacked. These
packets were removed for drying and examination. On the 7th of October
2007, at Lisburn PSNI Station, A/Sergeant S Cochrane took Elliott’s finger
impressions using the Livescan fingerprinting procedure and forwarded them
electronically to Fingerprint Branch. Mr K Adair, a Fingerprint Officer for the
PSNI, then examined the polythene packets and one imprint was found which
matched Elliott’s left thumb impression taken on the Livescan machine. It
matched in 45 characteristics. As a result he was certain that the thumb print
on the polythene packets was that of the respondent Elliott. When
interviewed the respondents stated that they were in each other’s company
the whole time and had not been in A&PS premises. Livescan is an electronic
mechanism whereby finger impressions can be scanned into a machine and
then transmitted electronically to other locations for comparison.
[3] The respondents were prosecuted in the Magistrates Court and
convicted and sentenced to 8 months imprisonment. They appealed that
conviction to Craigavon County Court (His Honour Judge Markey QC). At
the hearing no evidence was called. Counsel on behalf of the respondents
objected to the admissibility of the evidence of the taking of Elliott’s finger
impressions. It was submitted that this evidence was not admissible as the
Secretary of State had not approved the Livescan device as required by Article
61(8)(b) of the Police and Criminal Evidence (Northern Ireland) 1989.
His Honour Judge Markey acceded to that submission and the respondents
were acquitted. The Public Prosecution Service (PPS) requested that the
learned County Court Judge state a case for the opinion of the Court of
Appeal. The Judge acceded to that request. The question posed in the case
stated is -
Was I correct in law when I found that the
fingerprint comparisons taken from William Elliott
via the Livescan fingerprint device were not
admissible as evidence against him: as an approval
from the Secretary of State, for the use of the Livescan
device, was not in place as required by article 61(8)(b)
of the Police and Criminal Evidence (NI) Order 1989
as inserted by the Police and Criminal Evidence
(Amendment) Order 2007?”
[4] Mr Hunter QC appeared on behalf of the appellant and
Mr McMahon QC on behalf of the respondents. We are grateful to counsel for
their helpful written and oral submissions.
[5] The Police and Criminal Evidence (Northern Ireland) Order 1989 (the
1989 Order) introduced significant changes to the law relating to the powers
of the police in the investigation of crime and to evidence in criminal

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4 cases
  • Public Prosecution Service v McKee; Public Prosecution Service v Elliott
    • United Kingdom
    • Supreme Court
    • 22 May 2013
    ...[2013] UKSC 32 THE SUPREME COURT Easter Term On appeal from: [2011] NICA 61 Lord Neuberger, President Lady Hale Lord Mance Lord Kerr Lord Hughes Public Prosecution Service (Respondent) and McKee (AP) (Appellant) (Northern Ireland) Public Prosecution Service of Northern Ireland (Respondent)......
  • The Queen v Andreas Norford
    • British Virgin Islands
    • High Court (British Virgin Islands)
    • 17 September 2021
    ...Judge By the Court Registrar 1 [2002] EWCA Crim 385 at para 37 2 BVIHCRAP 2013/0003 at para 27 3 [1998] 2 S.C.R. 449 4 [1980] A.C. 402 5 [2011] NICA 61, 2011 WL 6943264 6 [2001] UKHL 53 ...
  • The Queen v Andreas Norford
    • British Virgin Islands
    • High Court (British Virgin Islands)
    • 17 September 2021
    ...Judge By the Court Registrar 1 [2002] EWCA Crim 385 at para 37 2 BVIHCRAP 2013/0003 at para 27 3 [1998] 2 S.C.R. 449 4 [1980] A.C. 402 5 [2011] NICA 61, 2011 WL 6943264 6 [2001] UKHL 53 ...
  • Joseph v Commissioner of Police; Knowles v Commissioner of Police
    • Bahamas
    • Court of Appeal (Bahamas)
    • 13 December 2012
    ...of the manner in which it was obtained (see Kuruma v. R. [1955] A.0 197, R. v. Fox AC 281, Public Prosecution Service v. Elliot and McKee [2011] NICA 61 at paragraph 28). 13 Undoubtedly, it is open to a trial judge to exclude any evidence which appears to the Court that having regard to all......
1 books & journal articles
  • The American Exclusionary Rule
    • United States
    • International Criminal Justice Review No. 22-3, September 2012
    • 1 September 2012
    ...exclusionary rule debate.Boston College International and Comparative Law Review,22, 77–140.The Public Prosecution Service v. Elliot, [2011] NICA 61.Tomlinson, E. A. (1983). Nonadversarial justice: The French experience. Maryland Law Review,42, 131–195.United States v. Calandra, 414 U.S. 33......

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